United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAG O ATE JUDGE
matter was referred to a United States Magistrate Judge to
conduct a hearing, including an evidentiary hearing, if
necessary, and to submit proposed findings and
recommendations for disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C), § 1915e(2), and §
1915A, and as applicable, 42 U.S.C. §
1997e(c)(1) and(2). Upon review of the entire
record, the Court has determined that this matter can be
disposed of without an evidentiary hearing.
Factual and Procedural Background
plaintiff, Larry James Fitch (“Fitch”), is an
inmate housed in the Franklin Parish Detention Center
(“FPDC”). He filed this pro se complaint
under 42 U.S.C. § 1983 against the defendants,
Terrebonne Parish Sheriff Jerry Larpenter, Warden Triche, and
Deputy Foret, alleging that while housed in defendants'
custody, he fell off of a broken stool while wearing shackles
and exiting a transport van. He claims that he was
unconscious while Deputy Foret, accompanied by Nurse Pat,
tried to remove the lockbox on his cuffs. He seeks monetary
and injunctive relief.
did not file the suit on the form required for § 1983
prisoner complaints, and he failed to submit a filing fee or
an application to proceed in forma pauperis with the
Standard of Review under Fed.R.Civ.P. 41(b)
41(b) of the Federal Rules of Civil Procedure specifically
provides that a court may, in its discretion, dismiss a
plaintiff's claim for failure to prosecute or for failure
to comply with the Federal Rules of Civil Procedure or any
order of the court. A Rule 41(b) dismissal is considered an
adjudication on the merits. Fed.R.Civ.P. 41(b). In
determining whether to dismiss a claim, courts have
traditionally considered the extent to which the plaintiff,
rather than his counsel, has been responsible for any delay
or failure to comply with a rule or order. See,
e.g., Markwell v. County of Bexar, 878 F.2d
899, 902 (5th Cir. 1989); Price v. McGlathery, 792
F.2d 472, 474-75 (5th Cir. 1986); Silas v. Sears, Roebuck
& Co., 586 F.2d 382, 385 (5th Cir. 1978); Ramsay
v. Bailey, 531 F.2d 706, 708-09 (5th Cir. 1976).
is without counsel and is responsible for the prosecution of
his case. A pro se litigant is not exempt from
compliance with relevant rules of procedural and substantive
law. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
1981); Beard v. Experian Information Solutions Inc.,
214 Fed.Appx. 459, 462 (5th Cir. 2007). A pro se litigant who
fails to comply with procedural rules has the burden of
establishing excusable neglect, which is a strict standard
requiring proof of “more than mere ignorance.”
See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th
Cir.1988) (quotation omitted); Birl, 660 F.2d at
noted above, Fitch did not file the suit on the required form
or submit the filing fee or request leave to proceed in
forma pauperis. The Clerk of Court sent a notice dated
July 24, 2018, to Fitch at his address of record advising him
that he was required to complete the § 1983 complaint
form and either pay the filing fee or submit a certified
pauper application. The Clerk provided the necessary forms
with the deficiency notice. The Clerk of Court mailed the
notice and forms to Fitch at the address he provided on the
complaint. The envelope has not been returned as
undeliverable. Fitch did not reply to the notice.
August 29, 2018, the undersigned issued an Order requiring
Fitch to show cause on or before September 18, 2018, why his
complaint should not be dismissed for failure to comply with
the Clerk's deficiency notice. The Order was mailed to
Fitch at his address of record, and the envelope has not been
returned as undeliverable. Fitch has not replied to the Show
notice of deficiency and the Court's Show Cause Order
were mailed to Fitch at the only address he has provided. All
litigants are obligated to keep the court advised of any
address change. Local Rules 11.1 and 41.3.1. Fitch has not
notified the Clerk's Office or the Court that he has been
released from the facility or that his address has changed.
In fact, Fitch's last pleading indicates that he is still
incarcerated in the FPDC. Despite this, Fitch still has not
submitted the form complaint or provided the filing fee or
pauper application required to prosecute his case.
Accordingly, dismissal with prejudice of his complaint is
proper under Fed.R.Civ.P. 41(b) for his failure to prosecute.